Opinion
NO. 2019-CA-1870-ME NO. 2019-CA-1871-ME NO. 2019-CA-1873-ME
04-16-2021
J.E.H. AND A.R.H. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY AND B.E.R.H., A CHILD APPELLEES AND J.E.H. AND A.R.H. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY AND J.Z.G.H., A CHILD APPELLEES AND J.E.H. AND A.R.H. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY AND A.T.M.H., A CHILD APPELLEES
BRIEF FOR APPELLANTS: Jason Apollo Hart Frankfort, Kentucky John R. Fee LaGrange, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY: Kevin J. Martz Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM TRIMBLE CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 18-AD-00001 APPEAL FROM TRIMBLE CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 18-AD-00002 APPEAL FROM TRIMBLE CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 18-AD-00008 OPINION
AFFIRMING
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BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES. TAYLOR, JUDGE: J.E.H. and A.R.H. (collectively referred to as appellants) bring Appeal Nos. 2019-CA-1870-ME, 2019-CA-1871-ME, and 2019-CA-1873- ME, from Findings of Fact and Conclusions of Law, Order Terminating Parental Rights and Order of Judgment entered in each case by the Trimble Circuit Court, Family Court Division, on November 6, 2019, terminating their parental rights to their three minor children. We affirm.
J.E.H. is the biological father and A.R.H. is the biological mother of three minor children: B.E.R.H., a son, born May 15, 2003; J.Z.G.H., a daughter, born February 14, 2008; and A.T.M.H., a son, born March 7, 2017. Relevant to this appeal, the Cabinet for Health and Family Services, Commonwealth of Kentucky (Cabinet), became involved with appellants in mid-2016, amid concerns of sexual abuse perpetrated by B.E.R.H. upon J.Z.G.H., lack of child supervision, and substance abuse by the parents. Following the Cabinet's investigation, petitions were filed in July 2016, alleging dependency, neglect, and/or abuse as to B.E.R.H. and J.Z.G.H. B.E.R.H. and J.Z.G.H. were not initially removed from the home; rather, the Cabinet developed a case plan. The case plan included the following services for the family: therapy for the children, therapy for the parents, protective parenting classes, mental health assessments, substance abuse assessments, and drug screens. Appellants were not compliant with the Cabinet's case plan as they did not complete any drug screens between November 2017 and July 2018, did not attend the recommended protective parenting classes, and did not follow up with the services recommended based upon their assessments. Appellants also failed to comply with the Cabinet's directive to keep J.Z.G.H. safe from sexual abuse by her older brother, B.E.R.H. A concern also arose that appellants were not providing the children with proper home schooling.
As a result of appellants' lack of cooperation and noncompliance, B.E.R.H. and J.Z.G.H. were placed in the custody of the Cabinet by orders entered September 12, 2016. The two children were given different placements; B.E.R.H. was placed in the Children's Home of Northern Kentucky and J.Z.G.H. was placed with a foster family. The Cabinet developed a new case plan, but appellants refused to sign it. The Cabinet also established a visitation schedule for appellants. However, in early 2017, the Cabinet ceased visitation due to appellants' inappropriate behavior during visits. Appellants' inappropriate behavior included: giving J.Z.G.H. an iPad with a tracking device, posting statements on social media identifying and disparaging the foster mother, and attempting to coach the children.
On March 7, 2017, appellants' third child, A.T.M.H., was born. At birth, A.T.M.H.'s meconium was positive for suboxone. The Cabinet again attempted to engage appellants in services, but appellants were not responsive. Appellants would not schedule a home visit with the Cabinet, and they were not appearing for court dates. Then, in August or September of 2017, the Cabinet lost contact with A.R.H. It was subsequently determined that in an attempt to avoid Cabinet intervention, A.R.H. left Kentucky and took A.T.M.H. with her. Warrants of arrest were issued for A.R.H. due to her failure to appear in court and her failure to produce the child. In June of 2018, A.R.H. was arrested. In July of 2018, A.T.M.H. was retrieved from a campground in Indiana. It was immediately discovered that A.T.M.H. had suffered a recent skull fracture.
The Cabinet filed petitions for involuntary terminations of parental rights as to B.E.R.H., J.Z.G.H., and A.T.M.H. on April 6, 2018. The cases were considered together by the family court. An evidentiary hearing was subsequently conducted by the family court over three days in August of 2019. By Findings of Fact and Conclusions of Law, Order Terminating Parental Rights and Order of Judgment entered November 6, 2019, in each case, appellants' parental rights were terminated as to B.E.R.H., J.Z.G.H., and A.T.M.H. These appeals follow.
For purposes of appellate review and judicial economy, the three appeals were consolidated by this Court.
In Kentucky, the involuntary termination of parental rights is provided for in Kentucky Revised Statutes (KRS) 625.090. The statute provides that parental rights may be terminated only if the family court finds by clear and convincing evidence: (1) the child is abused or neglected under KRS 600.020(1); (2) termination of parental rights is in the child's best interest; and (3) one or more of the factors set forth in KRS 625.090(2) exists. Cabinet for Health and Family Servs. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014).
In this appeal, appellants have stipulated that the children were neglected, thus no review of the family court's findings on this issue are necessary under KRS 625.090(1)(a). The family court likewise made specific findings that one or more of the enumerated factors set out in KRS 625.090(2) were established by clear and convincing evidence. These findings are also not being challenged by appellants in this appeal.
The primary issue raised by appellants in this appeal looks to whether there was clear and convincing evidence presented to establish that the termination of appellants' parental rights was in the children's best interests pursuant to KRS 625.090(1)(c) and KRS 625.090(3). Appellants argue that the evidence was not sufficient to support such a finding. Our review proceeds accordingly.
The applicable standard of appellate review of findings by the family court in a termination of parental rights case is the clearly erroneous standard; thus, the findings of fact will not be set aside unless unsupported by substantial evidence. M.L.C. v. Cabinet for Health and Family Servs., 411 S.W.3d 761, 765 (Ky. App. 2013); see also CR 52.01. A family court has broad discretion in determining whether the best interests of the child warrant termination of parental rights. C.J.M. v. Cabinet for Health and Family Servs., 389 S.W.3d 155, 160 (Ky. App. 2012) (citation omitted).
KRS 625.090 provides, in relevant part:
(3) In determining the best interest of the child and the existence of a ground for termination, the Circuit Court shall consider the following factors:
(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability as defined by KRS 202B.010(9) of the parent as certified by a qualified mental health professional, which renders the parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time;
(b) Acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family;
(c) If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents unless one or more of the circumstances enumerated in KRS 610.127 for not requiring reasonable efforts have been substantiated in a written finding by the District Court;
(d) The efforts and adjustments the parent has made in his circumstances, conduct, or conditions to make it in the child's best interest to return him to his home within a reasonable period of time, considering the age of the child;
(e) The physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered; and
(f) The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so.
In the case sub judice, based on our review of the record, it was demonstrated by clear and convincing evidence that termination of appellants' parental rights was in the best interest of the children. In making the best interest determination, in an extensive and thorough analysis, the family court clearly considered the relevant factors set forth in KRS 625.090(3). Pursuant to KRS 625.090(3)(b), the family court found that appellants had neglected their children. And, as noted, the parents stipulated to same. The family court also found, pursuant to KRS 625.090(3)(c), that the Cabinet made reasonable efforts to reunite the children with appellants. In support thereof, the family court found that the Cabinet had rendered all reasonable reunification services to appellants. Since 2016, the Cabinet had offered appellants numerous services to help reunify the family, including substance abuse treatment, mental health treatment, and parenting classes. However, as the family court pointed out, appellants failed to utilize the services recommended. Thus, the family court found that the Cabinet had made reasonable efforts to reunite the family. See KRS 625.090(3)(c). The family court, likewise, found that appellants had not made the efforts and adjustments in their circumstances, conduct, or conditions to make it in the children's best interests to return within a reasonable time. See KRS 625.090(3)(d). As enumerated by the family court, appellants had not followed the recommendations from their assessments, had not completed the recommended parenting classes, and had not seen the older children since 2017. And, when the visits were occurring, appellants acted inappropriately leading to visits being ceased. The family court further found that both appellants had a history of failing to cooperate with the Cabinet. In fact, at times, appellants stopped communicating with the Cabinet entirely, and parents' conduct after removal of the children was totally unresponsive to the Cabinet's directives and certainly not in the children's best interests.
The family court also found that since entering foster care, the children's mental, emotional, and physical needs had been met. See KRS 625.090(3)(e). And, the family court found that all three children had adjusted well with their placements. J.Z.G.H. and A.T.M.H. were placed together and have bonded with each other and their foster parents. Likewise, B.E.R.H. had shown improvement and excelled in his placement. All three children were receiving the necessary services and doing well. The family court further found that the children's welfare would likely continue to improve if termination were ordered. Considering the voluminous amount of evidence presented, the family court properly determined that termination of appellants' parental rights was in the best interests of B.E.R.H., J.Z.G.H., and A.T.M.H.
Appellants also argue on appeal that the family court erred by denying their motions to dismiss the petitions to terminate their parental rights. More particularly, appellants assert the family court erroneously failed to dismiss the termination of parental rights action for the Cabinet's failure to name the foster parents as indispensable parties. In support of their assertion, appellants claim that pursuant to KRS 625.060(1)(d), as it existed from June 27, 2019, until March 16, 2020, a foster parent was an indispensable party to a termination of parental rights action. KRS 625.060(1), as it existed from June 27, 2019, until March 16, 2020, provided:
(1) In addition to the child, the following shall be the parties in an action for involuntary termination of parental rights:
(a) The petitioner;
(b) The cabinet, if not the petitioner;
(c) The biological parents, if known and if their rights have not been previously terminated. It shall not be necessary to make the putative father a party if he is exempted by KRS 625.065; and
(d) A foster parent of a child who is currently placed with the foster parent, and the child is part of the involuntary termination of parental rights action that is related to an allegation of dependency, neglect, or abuse pursuant to KRS Chapter 620, unless the judge determines this involvement is inappropriate.
Prior to the June 27, 2019, amendment, KRS 625.060 did not contain Section (1)(d), and no reference was made to a foster parent. And, on March 16, 2020, Section (1)(d) was deleted from KRS 625.060. Simultaneous with the deletion of Section (1)(d) from KRS 625.060, Section (3) was added to address a foster parent's role in a termination of parental rights action. As of March 16, 2020, Section (3) of KRS 625.060 provides that a "foster parent may intervene" in an involuntary termination of parental rights action.
Kentucky Revised Statutes 625.060(3), became effective March 16, 2020, and provides:
A foster parent of a child who is currently placed with the foster parent may intervene as a matter of right in any action for the involuntary termination of parental rights involving a child who is placed with the foster parent. Such intervention may be made anonymously or in the true name of the foster parent. If proceeding anonymously, the foster parent shall be identified by initials and shall receive service through his or her counsel or, if not represented by counsel, by providing a preferred mailing address to receive notices from the court and other parties.
The fallacy in appellants' assertion is that the version of KRS 625.060 that arguably identifies a foster parent as an indispensable party to a termination of parental rights action was not in effect at the time the termination of parental rights petitions were filed. The Cabinet filed the petitions for termination of appellants' parental rights in the family court in 2018, well before Section (1)(d) was added to KRS 625.060 on June 27, 2019. So, the foster parents were not named as parties to the termination proceedings in the family court as KRS 625.060 did not require same. Therefore, we are of the opinion that family court properly denied appellants' motions to dismiss the termination actions for failure to name the foster parents as indispensable parties.
Finally, appellants allege that their due process rights were violated and the petitions should have been dismissed when the family court failed to make a timely adjudication in accordance with KRS 625.080(5) and KRS 625.050(7). We agree with the family court that there is no legal authority to support this argument nor have appellants demonstrated any prejudice whatsoever. Without addressing the merits or constitutionality of these statutes, we simply note that parental rights termination cases are extremely difficult cases which require the utmost attention and scrutiny by our courts for the benefit of children and parents alike. If anything, any delays in these cases inured to the benefit of appellants.
In sum, we conclude that the family court properly terminated both appellants' parental rights as to B.E.R.H., J.Z.G.H., and A.T.M.H.
For the foregoing reasons, Appeal Nos. 2019-CA-1870-ME, 2019-CA-1871-ME and 2019-CA-1873-ME are affirmed.
ALL CONCUR. BRIEF FOR APPELLANTS: Jason Apollo Hart
Frankfort, Kentucky John R. Fee
LaGrange, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES, COMMONWEALTH OF
KENTUCKY: Kevin J. Martz
Covington, Kentucky